On February 24, 2016,
President Obama nominated Carla Hayden, the CEO
of Enoch Pratt Free Library in Baltimore, to be Librarian of Congress. James
Billington, a President Reagan appointee, retired last fall after 28 years in
the post. If confirmed by the Senate, Ms. Hayden would become the 14th
Librarian of Congress
in U.S. history and first female and African American to hold the position.
Within the Library of
Congress sits the Copyright Office (“CO”), which has not been the subject of any
major reforms since the 1970’s. As I wrote in an April 2015 blog, the Copyright Office needs
to be modernized to upgrade its IT infrastructure and digital capabilities.
A March 2015 GAO report addressed some of the
upgrades necessary for the Copyright Office, and a year later these are still needed.
The Library of Congress’s existing information technology capabilities are not
sufficient for accomplishing the accessibility, efficiency and productivity objectives
of the Copyright Office. For example, currently the Copyright Office still
relies on a paper-based record-keeping system for many of its records and
entirely for its recordation of copyright licenses, even though
copyright-intensive industries, which generate over $1.1 trillion and employ nearly 5.5
million workers, operate almost entirely with digital technologies. In order to
enable registration and recordation of copyrights on a readily accessible and
efficient basis that facilitates free market transactions involving copyrights,
the CO’s IT capabilities should be modernized.
Despite the lack of
support from the Library, the Copyright Office has been responsive to its
customers and Congress, preparing a
comprehensive IT modernization plan, which it offered for public comment. Today, the House Appropriations Committee’s
Subcommittee on the Legislative Branch will hold a hearing on the Library and
the Copyright Office. The Acting Librarian likely will promise that the Library
will support the Copyright Office, as he did in a hearing
before the House Administration Committee last December. But such claims are not credible when one
considers that the GAO has testified that the Library has still not implemented
any of the recommendations on improving its IT system. Empty promises aren’t going to fix the
problem.
And the ongoing Copyright
Office problems have a structural element. Many of the technological capability
and digital infrastructure issues, as well as CO functions relating to
evaluating and improving copyright policy, can be more readily and easily
addressed if the office is given independence from the Library of Congress,
especially with respect to its ability to set priorities and allocate funds.
In December 2015, Representatives
Tom Marino (R-PA), Judy Chu (D-CA) and Barbara Comstock (R-VA) introduced the Copyright Office for the
Digital Economy Act.
If enacted, the bill would restructure the Copyright Office as a stand-alone
agency in the legislative branch. The Director of the Copyright Office would be
nominated by the President, based on recommendations from a commission which
would include the Speaker of the House, the President pro tempore of the
Senate, the majority and minority leaders of the House and Senate, and the
chairmen and ranking minority members of the Committee on the Judiciary of the
House and the Committee on the Judiciary of the Senate. Upon Senate
confirmation, the Director would serve for a term of 10 years.
If the
Marino-Chu-Comstock bill, or a similar one, is enacted giving the Copyright
Office at least some measure of independent authority, the agency presumably
would be able more easily to acquire property, personnel, supplies, or
technology needed for it to better fulfill its mission in today’s digital age.
The bill would require an annual report to be published to notify the public of
the work and accomplishments of the Copyright Office. The bill also contains
instructions for cooperation from the Library of Congress to ensure a smooth and
timely transition of personnel (including Copyright Royalty Judges), equipment,
and technology.
If the “Copyright Office
for the Digital Economy Act” or a similar bill is enacted into law soon, then the
new Librarian of Congress nominee, if confirmed, may have a small role to play
regarding the needed modernization of the Copyright Office, although, in any
event, she would surely play an important role in transition efforts. But if legislation
isn’t adopted to reorganize and modernize the Copyright Office, one of the most
essential near-term tasks of the new Librarian of Congress should be to focus
her efforts on supporting the Copyright Office’s plans for its modernization
project so as to achieve an easily accessible, efficient, and reliable
registration and recordation system.
The modernization project is
necessary for our copyright system to achieve its important purposes of
protecting artists’ and creators’ rights to earn a return on their labor and to
facilitate market transactions in copyrights in a way that promotes “the
Progress of Science and useful Arts.”
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